August 17, 2012

Chief Justice John Roberts’ decision to uphold the Affordable Care Act “individual mandate” stirred fury on the Right and leery relief on the Left. But the stunning outcome produced bipartisan agreement on one basic point: Roberts’ Solomonic solution—endorsing conservatives’ claim that the mandate breached Congress’ power to regulate interstate commerce, but saving the provision itself as a tax—was a politically driven improvisation.

To defuse a political crisis, both sides of the political spectrum agreed, the Chief “rewrote” the text of the ACA (per the bitter dissent by his four conservative colleagues), “contorted logic and reason” (per Representative, now presumptive Vice Presidential nominee, Paul Ryan), and either “betrayed” conservatives (National Review’s Thomas Sowell) or, in a more generous interpretation, displayed “statesmanship” (The New York Times’ Thomas Friedman). On the Right, a campaign has already begun to discredit the legal standing of the decision. “The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent,” threatened Randy Barnett, counsel for the Republican state officials who brought the case.

Such sore-loser recriminations, however, overlook the fact that the Chief Justice’s tax argument, rather than springing full-blown from his own, admittedly fertile, tactical imagination, can be traced in significant part to analyses by two eminent conservative judges who ruled on ACA challenges last year, Jeffrey Sutton of the Sixth Circuit Court of Appeals in Ohio and, especially, by Brett Kavanaugh of the District of Columbia Circuit Court. Like Roberts himself, Sutton and Kavanaugh are brainy young Federalist Society favorites elevated to the bench by President George W. Bush. All of them earned their promotions by proving their political loyalty—Sutton as a wunderkind exponent of novel states’ rights constitutional theories in the late 1990s; Kavanaugh as drafter of Independent Counsel Kenneth Starr’s report urging impeachment of President Bill Clinton and as a senior member of Bush’s White House staff. As appellate judges, however, Sutton and Kavanaugh handled the ACA challenges in nuanced fashion, tempering their partisanship with an acknowledgement of applicable law and a recognition that overturning the ACA mandate could disserve conservative policy and jurisprudential goals. Their pronouncements in the case underscore just how closely Roberts’s ruling fits with the ACA’s statutory text, judicial precedent, and conservative principle.

In oral argument on June 1, 2011, just over a year before the Supreme Court’s decision, Sutton berated the lawyer challenging the ACA mandate. Against the claim that the ACA provision constituted an unprecedented and absolute diktat, the judge retorted:

[J]ust pay the penalty, pay the penalty, don’t get insurance, don’t be forced to do anything . . . no one is forced to do anything, you can’t say the law requires you to buy it, the law just penalizes you if you don’t.

In other words, Sutton said, the ACA’s mandate is not a “mandate” at all, but an incentive, a nudge, a choice. Normally, regulatory requirements are not optional. Payment of a penalty does not relieve the obligation to comply with the requirement. If we miss a tax payment, we must pay a penalty, of course. But we still owe the tax! In contrast, persons subject to the ACA mandate may pay the tax as an alternative to buying insurance.

A few months later, during a September 23 oral argument before the District of Columbia Circuit Court and in an opinion issued November 8, Brett Kavanaugh, elaborated Sutton’s point. Noting that the ACA penalty is “capped at the average price of a health insurance plan,” he stressed that the “tax penalty is the only sanction for failing to have insurance.” In light of that limitation, he said, the government was on sound ground defending the mandate as a “routine tax incentive.” He saw only one potential objection, namely, that uninsured citizens who conscientiously pay the required penalty “might” nevertheless be considered in violation of the sentence in the law requiring maintenance of insurance coverage, and hence, acting “illegally.” That possible ambiguity, Kavanaugh stressed, could be clarified by “just a minor tweak to the current statutory language.” But in any event, he noted, even without a clarifying amendment, the incentive/ option interpretation would prevail under established doctrine that courts should, where possible, read statutes in ways that leave them free from constitutional question. Pointedly, he cited a 2009 Supreme Court decision in which Chief Justice Roberts had herded bitterly divided justices to unanimously approve a narrow, saving interpretation of the 1965 Voting Rights Act.

Kavanaugh stressed that his methodical analysis was not spurred by blinkered lawyerly nitpicking. On the contrary, he stressed, his outing of the “individual mandate” as an option served vital conservative principles and interests. He observed that the ACA could be “the leading edge of a shift” to “privatize the social safety net and government assistance programs.” Judges, he said, should be reluctant to put the brakes on such a trend. No doubt, Kavanaugh here had in mind President George W. Bush’s proposal to establish private retirement accounts, put forward while the judge was a senior White House staff member, as well as Paul Ryan’s tax-incentive-based proposals for replacing Medicare and the ACA, now locked in as planks in the Romney-Ryan presidential campaign platform and likely agenda items should they win the White House.

Further, Kavanaugh offered a second reason why his approach served conservative principles. He acknowledged that casting the ACA mandate as an incentive could facilitate validating it either as a Commerce Clause-based regulation or as a tax. Of the two, he counseled that the latter approach would be less a threat to individual autonomy. This, he said, was because the Commerce Clause approach would “necessarily” confer on the government “broad,” indeed “jarring” sanctioning powers, “including imprisonment.”

Kavanaugh’s take on the ACA mandate received little public notice. At the Justice Department, however, Solicitor General Donald Verrilli’s team caught his drift and its potential resonance for the Supreme Court’s conservative bloc. In the Department’s January 2012 brief to the Supreme Court, they quoted extensively from Kavanaugh’s opinion. The brief reinforced Kavanaugh’s analysis, specifying that the two agencies assigned to administer the minimum coverage provision, Health and Human Services and Treasury, both interpret it as imposing no legal obligation “independent of its tax-penalty consequences.” In the oral argument on March 28, Verrilli devoted much of his allotted time to drive home Kavanaugh’s conclusion that the mandate-as-optional-incentive was “the fairest reading of the statute,” parrying probing questions from the Left and the Right.

These extended exchanges attracted little notice from observers. Hence, the widespread shock when, three months later, the Court’s decision came down, and Roberts, it turned out, had paid close attention to Verrilli’s arguments, and, especially, to Kavanaugh’s opinion and to the arguments, precedents, and conservative principles that Kavanaugh had marshaled. He took on board the latter’s blunt observation that “the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight.” While the lower court opinion suggested that a simple amendment by Congress would “definitively establish the law’s constitutionality,” the Chief Justice got the obvious implication, that no such “minor tweak” was necessary. Since Congress passed the law aware of the Congressional Budget Office estimate that four million individuals would annually fail to comply, Roberts drily observed, “Congress did not think it was creating four million outlaws.” Most revealing, the Chief Justice repeated Judge Kavanaugh’s conservative jurisprudential policy argument that “The taxing power does not give Congress the same degree of control over individual behavior” that the commerce power does.

In short, Roberts’ decision cannot fairly be faulted for misreading the ACA, nor flouting precedent, and certainly not for ignoring conservative principle. That so many on the Right have brutally turned against him shows that the only end-point they cared about was outright cancellation of Barack Obama’s signature accomplishment in an election year. It is more surprising that so many on the Left have bought into the notion that the decision was a spiffed-up political fix. That they have shows how effectively right-wing propaganda has mischaracterized the ACA’s minimum coverage provision as simply a “mandate.” And it demonstrates yet again a dispiriting truth: When the political stakes are high, the country’s expectations of this Court’s independence are very low indeed.

Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.